Former justice minister Jody Wilson-Raybould dismissed the need to use a Liberal Party database to conduct background checks on candidates for judicial appointments, saying it is important for all potential judges to be treated fairly.
In a short interview before a speech in Vancouver on Wednesday, the independent MP said the vetting of potential judges must be non-partisan, with an emphasis on getting feedback from sitting judges and members of the legal community.
The Globe and Mail reported on Wednesday that the Prime Minister’s Office factors in political considerations when it conducts background checks on candidates. In particular, the PMO runs candidates through the Liberal database of supporters called Liberalist to see whether they have been supportive of the party in recent years.
“I never used Liberalist in terms of judicial appointments,” Ms. Wilson-Raybould said. “In terms of judicial appointments, we need to be consistent with what we do in terms of the vetting process, the importance of validators within the judiciary, within the legal community. That needs to continue and it needs to be the same for every person put forward for judicial appointment.”
Ms. Wilson-Raybould was shuffled out of her position of minister of justice and attorney-general in January, and was ejected from the Liberal caucus because of her accusations that members of the PMO inappropriately put her under pressure on the prosecution of engineering company SNC-Lavalin Group Inc.
As justice minister, Ms. Wilson-Raybould modified the process under which the federal government appoints judges to superior and federal courts in 2016. The changes gave greater independence to the seven-member judicial advisory committees (JAC) that evaluate the candidates for appointments. Records obtained by The Globe show the PMO used Liberalist to evaluate candidates who had gone through the JAC process.
Experts who have analyzed the role of partisan considerations in the judicial appointment process in Canada said the federal government needs to better explain how it picks judges.
“The system is opaque enough that we’re not sure whether the very best people are being appointed and, if not, if it is having to do with partisan affiliation in certain cases or not,” said Troy Riddell, chair of the political science department at the University of Guelph.
Candidates for the bench are screened by a seven-member JAC, which determines whether they are not recommended, recommended or highly recommended for an appointment. However, the government does not state what percentage of its appointees are highly recommended and what percentage are appointed after receiving the lower ranking of recommended.
Lori Hausegger, who is the director of the Canadian studies program at Boise State University in Idaho, said the federal government should follow the model used in Ontario, in which the government must pick from a shortlist of candidates created by an independent committee.
“It would be better if [the committee] made a very short list and the government had to choose from that shortlist. … That gets rid of a lot of the opportunities for discretion,” she said.
Peter Russell, an emeritus political science professor at the University of Toronto who helped design Ontario’s appointment process, said there is not enough accountability in the federal system. He said the vetting of candidates at the political level adds an “irrelevant layer” to the process.
“Canadians should be worried,” he said. “If they want a merit system of selecting judges, they should be worried that it could be subverted.”
Using information from Elections Canada’s public database of political donations, The Globe found about 25 per cent of the 289 judges appointed or promoted by Prime Minister Justin Trudeau’s government since 2016 had donated to the Liberal Party of Canada. About 6 per cent donated to the Conservative, New Democratic or Green parties.
Adam Goldenberg, a Toronto-based lawyer who previously worked as a Liberal staffer, said the federal government seems to be striving to ensure not too many party supporters make it on the bench. In his view, the number of appointees who are Liberal donors is “very low.”
“It suggests that the government is using the Liberal database to avoid appointing partisans, not to seek them out,” he wrote on Twitter.
PMO spokeswoman Chantal Gagnon declined to comment on the government’s use of Liberalist. She said this week that the appointment of new judges is done through an “open, independent, transparent and merit-based process” and political donations do not have an effect on judicial appointments.
The NDP said the Liberal government has failed to live up to its promise to bring greater openness to the judicial appointment process.
“It is completely inappropriate to use a party database to vet judges. This is not something that you do in a credible, G7 country,” NDP MP Charlie Angus said. “If they think they can get away with it with judges, what else are they using Liberalist for?”